26 O’HALLORAN AND FRANCIS v. THE UNITED KINGDOM JUDGMENT – DISSENTING OPINION OF JUDGE PAVLOVSCHI being compelled to testify, in appropriate circumstances. The person claiming the exemption has the burden of satisfying the judge that in all the circumstances the prejudice to his interests overbears the necessity of obtaining the evidence. ... Defining ‘self-incrimination’ over-inclusively as arising whenever the State obtains evidence which it could not have obtained ‘but for’ the individual’s participation would take the notion of self-incrimination far beyond the communicative character that grounds it at common law. ... Both the common law and the Charter draw a fundamental distinction between incriminating evidence and self-incriminating evidence: the former is evidence which tends to establish the accused’s guilt, while the latter is evidence which tends to establish the accused’s guilt by his own admission, or based upon his own communication. The s. 7 principle against self-incrimination that is fundamental to justice requires protection against the use of compelled evidence which tends to establish the accused’s guilt on the basis of the latter grounds, but not the former.”1 In the United States legal system the issue of obtaining confessions can be settled by means of a non-prosecution agreement, which provides partial immunity against prosecution in relation to self-incriminating evidence submitted by an accused under compulsion. In general, as far as the United States legal system is concerned, it is worth noting that the American judiciary treats the privilege against selfincrimination as a Constitutional principle. In this respect the case of Malloy v. Hogan is of particular interest. In this case the US Supreme Court ruled as follows: “Brown v. Mississippi ... was the first case in which the Court held that the Due Process Clause prohibited the States from using the accused’s coerced confessions against him. ... [I]n Bram v. United States, ... the Court held that ‘[i]n criminal trials, in the courts of the United States, wherever a question arises whether a confession is incompetent because not voluntary, the issue is controlled by that portion of the Fifth Amendment to the Constitution of the United States, commanding that no person “shall be compelled in any criminal case to be a witness against himself”’’ ... Under this test, the constitutional inquiry is not whether the conduct of State officers in obtaining the confession was shocking, but whether the confession was ‘free and voluntary: that is, [it] must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence. ...’ ... In other words the person must not have been compelled to incriminate himself. We have held inadmissible even a confession secured by so mild a whip as the refusal, under certain circumstances, to allow a suspect to call his wife until he confessed. ... The marked shift to the federal standard in State cases began with Lisenba v. California, ... where the Court spoke of the accused’s ‘free choice to admit, to deny, or to refuse to answer.’ ... The shift reflects recognition that the American system of criminal prosecution is accusatorial, not inquisitorial, and that the Fifth Amendment privilege is its essential mainstay. ... Governments, State and federal, are thus constitutionally compelled to establish guilt by evidence independently and freely secured, and may not by coercion prove a charge against an accused out of his own mouth. Since the Fourteenth Amendment prohibits the States from inducing a person 1. See R. v. S. (R.J.) [1995] 1 S.C.R. 451.